The American Constitution Society and Federalist Society co-sponsored a rare forum with Supreme Court Justices Breyer and Scalia. A story about it I read late last night teased me with this sentence:
[T]he liberal Breyer and the conservative Scalia took part in a rare public discussion touching on some of the most contentious issues that have come before the court, including abortion, religion and the death penalty.
Streaming video of the discussion–which is fascinating on every topic–is here. And there is in fact considerable discussion of religion law. It starts off with a rare moment of agreement, as Justice Breyer responds to a question about his school voucher dissent (my rough transcript).
Breyer: The vouchers, I think that's a very interesting case and quite difficult. It's absolutely true historically it had to do with the meaning of the Establishment Clause. And that's a tough, tough–I'm sorry whether you're a historian or not a historian that just isn't obvious.
Scalia: I agree with that. It's the toughest.
Breyer goes on to admit that his conclusion in the voucher case–based as he says on his belief that one value of the Clause is to limit religious dissension–was not arrived at with certainty (though he declined to say he had changed his mind). Later, he explains the thought process behind his controversial decisions in the 2 Ten Commandment cases. (He is the one Justice in both majorities, leading to conclusions that on the surface seem contradictory–allowing Ten Commandment displays in one case and denying them in another.)
Justice Scalia tells a joke about religion in America, and declares that the Court is absolutely wrong to interpret the Establishment Clause to say that government may not favor religion over non-religion. ("That's a lie," he said). The segment on religion begins at about minute 47 and lasts for 10 minutes or so. Melissa Rogers, who attended the event, has a post here. ABCNews posts a brief story here.
